Wednesday, November 11, 2009

DISCLAIMER: THIS POST IS BASED ON A LEGAL TOPIC - A SUMMARY OF A VERY VAST SUBJECT MATTER IN ITS SHORTEST POSSIBLE FORM. THOSE WHO DO NOT WISH TO READ IT, CAN SKIP THE CONTENT AND READ THE POST SCRIPT OF THIS POST.

Public Interest Litigation – most of us are aware about this term, but very few know the actual meaning of it. Public Interest Litigation, or popularly known as PIL was started to protect the interest of the public in general. Prior to 1980’s, only the party affected directly due to any wrong doing could seek justice in the court of Law. Any other person or party who was not directly and personally affected could not file a suit. This most of the times resulted into violation of fundamental rights guaranteed by our Constitution of India; and this rule affected the socially and economically weaker section of the society more. Thus, Supreme Court of India gave all individuals in the country and the newly formed consumer groups or social action groups, an easier access to the law and introduced in their work a broad public interest perspective.

~~ A PIL can be filed when the following conditions are fulfilled:

1) There must be a public injury and public wrong caused by the wrongful act or omission of the state or public authority.

2) It is for the enforcement of basic human rights of weaker sections of the community who are downtrodden, ignorant and whose fundamental and constitutional rights have been infringed.

3) It must not be frivolous litigation by persons having vested interests.

~~Any person can file a PIL provided:

* He is a member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury.

* He is not a mere busy body or a meddlesome interloper.

* His action is not motivated by personal gain or any other oblique consideration.

~~ Against whom Public Interest Litigation can be filed?

A Public Interest Litigation can be filed against a State/ Central Govt., Municipal Authorities, and not any private party. The term “State” includes:

• The Government and Parliament of India

• The Government and Legislature of each of the States

• All local authorities

• Other authorities within the territory of India or under the Government of India.

~~ How to file a PIL?

A PIL may be filed like a write petition. Writ Petition is a request made to government or any other authority like court to pass a written order on the subject matter.

**Information Source: Constitution of India Textbook by D. D. Basu

PS: THOSE WHO HAVE SKIPPED THE POST AND ARE READING ONLY THIS POST SCRIPT; PLEASE NOTE THAT WE LAWYERS ARE BENEFITED BECAUSE OF YOU. YOU CAN PAY US THE CONSULTATION FEES FOR OBTAINING THE INFORMATION MENTIONED HEREIN ABOVE.

PPS: KINDLY HIRE ME AS YOUR LAWYER IF YOU ARE STILL NOT GOING TO READ THIS POST.

Thursday, October 08, 2009

DISCLAIMER: THIS POST SPEAKS ABOUT ONE OF THE MOST SENSITIVE TOPICS – DOMESTIC VIOLENCE. I INTEND TO COVER ALL THE IMPORTANT ASPECTS RELATED TO THIS TOPIC WHICH INCLUDE LEGAL ASPECTS, JUDICIAL ASPECTS, ADMINISTRATIVE ASPECTS AND FACTS. THE VIEWS POSTED HERE ARE PURELY MINE. I REQUEST YOU ALL NOT TO GENERALIZE THEM AND ACT PURELY BASED ON THEM. THIS POST WILL BE DIVIDED IN TWO OR MORE PARTS. IF ANY OF YOU HAS ANY DIFFICULTY IN UNDERSTANDING ANY TERM, THEN PLEASE LEAVE YOUR QUERY IN THE FORM OF COMMENT AND I WILL ANSWER IT TO MY BEST KNOWLEDGE.

Applicability of the Law – The Process

1. The procedure for filing the complaint against the accused is that the victim can go to the police station nearby and file the complaint.

2. This offense is a non-bailable offense. To get the bail, the accused has to be presented in the court in front of the judge.

3. This offense is a non-compoundable offense. That means the complaint once filed cannot be withdrawn by the complainant or her relatives.

4. It is a cognizable offense. That means the complaint has be registered and investigated before making any arrests.

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My previous post and the points above spoke about the legal aspects of the Section 498 – A and Domestic Violence Act. My intentions for this post are not only to give information about how law works and protects you, but to give you a general guideline on how few precautionary measures can help you to protect your and your family’s interest when any kind of a case is filed.

Applicability of the Law – The Practice

In case of complaint filed under Section 498-A and Domestic Violence Act, the usual practice that has been followed is:

1. Whether to lodge the complaint or not, it depends on which party is stronger – the accused or the complainant.

2. Even though it is a cognizable offense, in most of the cases the arrests are made immediately after the complaint is lodged. There is no investigation made before arresting the accused party/ies.

3. Stronger the lawyer, stronger the case. Here I am not talking about a knowledgeable lawyer, but i am talking about influential lawyer. It is easy to know the law. A fresh graduate fighting his/her first case can also help you out in these matters, but when there is a question of getting a bail at the earliest, or making sure that the case gets sorted out as a settlement between two parties, you need a good and influential lawyer. That time it does not matter whether you are right or wrong. All that matters is who is your lawyer.

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My previous post got all different reactions from the readers. Few of them found the law very biased towards women to such an extent that women can take undue advantage of it. A few thought that each and every woman must know what protection law gives them, while a few were more curious to know about the actual practice as they rightly said that the law in the books and the law put in practice are two different things. As I mentioned there, and I am repeating here, I am not going to give a biased opinion that can protect or frame anybody, but the points mentioned below are the measures you can take when framed or before being framed:

1. Enter into a Prenuptial Agreement (Prenup) before marriage. Prenup is a declaration saying that neither of the parties has demanded or given any dowry. The jewellery, articles, clothes, vehicles etc. all are given to the girl as a gift by her parents and/or relatives. (If any of you require a prenup copy, then please mention that as a separate comment along with your e-mail id. I will send it to you and not publish the comment containing your id.)

2. Get the prenup duly signed and executed by the parties. Further, two witnesses each party must sign the Prenup as well.

3. Make a list of the articles brought in by the girl at the time of the wedding. The girl has a de facto (actual) right on Stridhan. Stridhan means and includes property inherited by the woman from her family or husband’s family; property received by her under a compromise, adverse possession or in lieu of maintenance; property obtained in partition; and property bought using proceeds from stridhan. However, gifts to the husband by the woman or her relatives will not be part of her stridhan.

4. Evidence plays a very crucial role when a complaint is filed. It can convict the innocent and evict the guilty. Thus it is highly recommended to keep all the documents viz. Marriage certificate, bank statements, Prenup, the list of the gifts received at the time of the wedding, wedding pictures, bills etc. Safely, copy them all and get the marriage certificate notarized so that both the parties have the valid copy of the same.

5. When a woman is physically abused, she should go to the doctor immediately, get the treatment and certificate mentioning the specific reason for the injuries from him. Here, it is highly recommended to go to a government hospital for the treatment as the certificate issued by the government hospital has a stronger legal stand. This point can be raised by a man who has been framed wrongfully by a woman when the case comes in the court. It may or may not help, but can be useful.

6. When a physical or verbal abuse is happening, start screaming and alert your neighbours. This can help you to get witnesses when you do not have sufficient evidences to prove your point. Further, it may help to avoid the damage being done further.

7. The moment you get the idea that there may arise some problem regarding any general or a specific issue; consult a lawyer before hand rather than waiting for the problem to take over first. This will help you maintain peace of mind and nerve when in trouble.

Monday, October 05, 2009

DISCLAIMER: THIS POST SPEAKS ABOUT ONE OF THE MOST SENSITIVE TOPICS – DOMESTIC VIOLENCE. I INTEND TO COVER ALL THE IMPORTANT ASPECTS RELATED TO THIS TOPIC WHICH INCLUDE LEGAL ASPECTS, JUDICIAL ASPECTS, ADMINISTRATIVE ASPECTS AND FACTS. THE VIEWS POSTED HERE ARE PURELY MINE. I REQUEST YOU ALL NOT TO GENERALIZE THEM AND ACT PURELY BASED ON THEM. THIS POST WILL BE DIVIDED IN TWO OR MORE PARTS. IF ANY OF YOU HAS ANY DIFFICULTY IN UNDERSTANDING ANY TERM, THEN PLEASE LEAVE YOUR QUERY IN THE FORM OF COMMENT AND I WILL ANSWER IT TO MY BEST KNOWLEDGE.

Part – 1. The Law

So many bloggers on this blogsphere have written something related to women suffering from physical abuse by her husband, so many newspapers and news channels report various news about dowry death, or torturing a woman to an extent that she decides to end her life rather than living in such a terrible state. Such cases which catch the public eye through the medium of media are very few. The numbers in the limelight are not even 10% close to what is actually reaching the stage of a police complaint against the accuse (which is a husband always, that is what I have seen at least). Additionally, there are very few people (again, usually women) who actually file a complaint against the party who has been accused of physical abuse, mental torture and/or dowry demand. Most of them prefer to keep quiet about this due to various reasons like family and society pressure, no or minimum financial support, future of kid/s , inefficiency of legal system and so on and so forth.

My intention for writing this post is not to give anybody a negative picture of either the judicial system or the administrative system. I simply want to put forward the picture that I have seen so far in my practice. I have never been directly involved in these matters – in a lawyer’s term, we call it family court practice – but, I have referred to, studied and come across many such cases that fall within the purview of domestic violence.

Earlier, there was only one section – Section 498-A of Indian Penal Code (popularly known as IPC) which protected a woman who had become a victim of domestic violence by her husband or his relative/s. But in the year 2005, a new law – The Domestic Violence Act, 2005 was enacted that specified the smallest of detail that can cause torture and/or physical as well as mental harassment to a woman.

What does the Law say?

Our Judicial system considers the harassment of the women as a criminal offence. Section 498A of IPC says that: S/498-A – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation-For the purpose of this section, "cruelty" means-

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.

Definition of domestic violence.- For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it –

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. Explanation I.-For the purposes of this section,-

(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) "verbal and emotional abuse" includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) "economic abuse" includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation: II.-For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration.

to be continued...

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PS: The explanation given above is what the Law says, whatever is written in the law books has been mentioned verbatim and not the tempered or modified version. How the law works outside books, that will be explained in the next post.

Friday, September 25, 2009

It is 2:30 am and I am not sleepy. Few hours back, we were all having a gala time at Vijay’s Haldi, and now the celebration mood is all gone...few terrorists have attacked the city...Mandar’s friend who stays at fort is home too...they both are awake as well...we were all sitting in the living room watching the news channel, but I couldn’t see it any longer...I have called almost all my friends who stay or work in the vicinity...Mandar is usually in his office at Nariman point till 10 pm or so, but today he came home early to attend Vijay’s haldi...

A friend’s friend became one of the first victims of this attack...before entering Leopold Cafe, the terrorists fired gunshots blindly on the street when this friend’s friend who was 25 years old was going home after his MBA classes...a bullet hit him and he died on the spot...when my friend was telling me about this incident, I could hear gunshots in the background as it was all happening the next door...yes, my friend stays next to the Nariman House building where the terrorists are present at the moment...how many? We don’t know, but they all are fully loaded with arms; that is what the latest report says...

December 2, 2008

We came back this morning to Mumbai after attending Vijay’s wedding...things are almost back to normal here...most of the offices located in the areas where the attacks took place have started functioning normally...nine out of ten terrorists are dead and one is captured alive...now what happens to him, that is to be seen in the coming days...in the meanwhile, there are so many smses doing rounds about various peace rallies happening all around...and so many people are attending them too...ask them what is the purpose of these rallies, some they are in the memory of people who lost their lives in the attack, some say they are against the government who is responsible for these attacks, some even say that they are attending as everyone else will be attending and that way, they will be able to take a glimpse of Hotel Taj too...I am going to be attending one too tomorrow – a peace rally...my reason? Well, attending a rally is better than sitting at home, not able to do anything...

December 4, 2008

Heena and I left for attending the Rally at 4 pm...our family people did not want us to attend it, we almost cancelled our plans, but our conscious did not let us rest, and we convinced people at home and left for the Gateway of India for the rally that was to start at 5 pm...one more girl joined us, she was a relative of Heena, but got down mid-way as her fiancé didn’t want her to attend the rally...now it was me and Heena...the traffic was bad, and we managed to reach Gateway by 7 30...we thought it would all be over by now, but we were wrong...it had all started at that time...there were around 2.5 to 3 lacs people (I read that this morning in the newspaper) gathered around Regal Theatre holding various hoardings and sign boards and protesting against various things and people like the Government, the minister, Pakistan, terrorism, corruption etc. etc. So it was in short nowhere close to a peace rally, but well, since we were there, we decided to join one of the groups marching without any cause, and I spotted one being leaded by an old college friend...he was working for one of the newspapers, but he didn’t represent it there...he too had thought it was a peace rally, but it didn’t look like one...he was there with a group of fifteen people and we joined them...on the way, we found many people selling t-shirts, caps, candles, stickers etc. with the message – Stop Terrorism and make Mumbai safe...

We reached Taj...for me, I had spent 8 long years visiting this area time and again, but had always seen this beautiful building shining brightly, spreading smile all around with its rich heritage as Mumbai’s pride...and now The same Taj was looking dead, so was the surrounding...the police was not allowing anybody to go near the Hotel, but in that pitch dark evening, thanks to the mild light spreading around due to a wedding happening at the Radio Club, we could see the damaged dome of the Hotel that had caught fire when the terrorists were inside...a group of college students were chanting abuses for the politicians, and they got a big and good enough lecture by a reporter lady for their immature behaviour...

On the way back, we spotted many celebrities giving away interviews to media...don’t know whether to call it their concern or another publicity stunt...no, we didn't click them, that was not necessary...

The above image is that of our Preamble...interestingly, the Constitution of India was enacted on November 26, 1949...Mumbai was attacked on the same day, 2008...maybe a coincidence, or is it?

one of the groups flaunting that poster at the "Peace" Rally

One of the groups Rallying peacefully..

A Promise...

Yes, such people were there too...

A college group had made this poster..

Point noted...

PS: I was not on blogger when the terror attack happened on Mumbai...and wanted to share my experience here...thus this post...